INTERNATIONAL CRIMINAL COURT NOW HAS TWO THIRDS OF NECESSARY RATIFICATIONS, PREPARATORY COMMISSION TOLD

Preparatory Commission for
International Criminal Court
1 October 2001
32nd Meeting (AM)





The United Kingdom and Liechtenstein have ratified the treaty establishing the International Criminal Court (ICC), bringing the total number of ratifications to the full two thirds of the 60 needed to bring the Court into being.

As the Preparatory Commission for the Court continued its eighth session this morning, the representatives of Liechtenstein and the United Kingdom said their ratifications would be officially deposited with the Secretary-General tomorrow and next week, respectively. In a plenary meeting last week, four other countries -— Mexico, Peru, Poland and Switzerland —- announced that they were in the final stages of ratification and hoped to officially deposit the instruments of ratification shortly.

The Commission heard from the Registrars of the International Criminal Tribunals for Yugoslavia and Rwanda concerning their insights and experiences, which might prove helpful to the ICC in its start-up phases.

Also, the Coordinators of the Commission’s various working groups reported on progress made in finalizing some of the practical agreements necessary for the Court to function.

Following up on his statement at last week’s meeting, on the importance of including terrorist crimes as a specific category under the jurisdiction of the Court, Turkey’s representative suggested that either the Commission consider the matter in its ongoing deliberations or convene an international conference with a mandate to revise the jurisdiction to include such crimes.

The Commission will meet again in plenary at a time to be announced.


Background

The Preparatory Commission for the International Criminal Court (ICC) met this morning to hear addresses from the Registrars of the International Criminal Tribunals for Yugoslav and for Rwanda. Coordinators for the Commission’s working groups will also give updates on the progress of their informal consultations.

Statements From Registrars

ADAMA DIENG, Registrar of the Rwanda Tribunal, said that in this dark hour, common efforts to establish an independent criminal justice system were needed more than ever. In light of the recent terrorist attacks, the ICC’s capacity to impartially bring to trial those responsible for such acts will depend on its preparedness to deal with the challenges ahead. Observation of due legal process left little room for compromise. The Court will be under an obligation to respond appropriately and expeditiously.

Speaking from the experience of the logistical setting up of the Tribunals, he stressed that the Court must benefit from as much early planning as possible, so that when it did begin to function, solid foundations were in place. Otherwise, ad hoc systems and stopgap solutions would become a daily reality. As it might be a year after entry into force of the Court’s treaty before a Registrar was appointed, he recommended that an advance authority begin work on preliminary and judicial systems.

The Agreement on Privileges and Immunities would be a great asset to the future ICC, particularly concerning the needs of the Prosecutor, he said. However, the needs of defence counsel, witnesses and experts could only be highlighted by using real case scenarios. Noting that the world, often on the basis of information from the media, had little sympathy or patience for the rights of the accused if it believed an individual to be guilty before the trial even commenced, he suggested that a legal aid programme be established early on in a neutral environment. It was equally, if not more, important to develop a system of justice that would not put innocent people behind bars, as it was to develop one convict those responsible.

He also addressed the travel and confidentiality problems that arose when many of the defence witnesses, and sometimes even the defence counsel, were refugees. He stressed that in the Agreement’s provisions on communications, in particular, the importance of information outreach programmes, must not be overlooked.

Turning to the financial rules and regulations of the Court, he said they must be flexible and respect the independence of the organs. The financial rules would have a great impact on the Court’s ability to deal expeditiously with unforeseen situations. Some situations which were wholly unforeseeable at the time of budgeting had resulted in large costs to the Tribunals. The Registrar, while answerable to the Presidency, should benefit from sufficient financial authority over judicial as well as non-judicial aspects of the administration and servicing of the Court.

He encouraged participants in the Commission to visit the International Criminal Tribunal for Rwanda, saying they would “receive the warmest of welcomes and surely gain unimaginable insights into the workings of an international criminal jurisdiction."

HANS HOLTHUIS, Registrar of the International Criminal Tribunal for the former Yugoslavia, stressed the need for flexibility to enable the Court to scale its operations as dictated by circumstances. He referred to the financial, administrative and procedural aspects of the Court’s operation.

As it continued its work on the practical arrangements for the Court’s operation, he said the Commission should also consider the importance of the recruitment of highly competent, experienced and sufficiently senior staff, to be in place from the beginning. Such a staff would provide the Court, from day one onwards, with a capacity to establish systems, set up effective protocols and training mechanisms to deal responsibly with the surge of activities that an exercise of jurisdiction would necessitate, in accordance with article 13 of the Court’s Statute.

He said the initial recruitment at the appropriate level of seniority was an investment that would save money later. It would give room for the managers of the organization to set up the required management and work structures themselves, without being tied to detailed configurations which had been pre-determined.

He said the Yugoslavia Tribunal, which was based at The Hague, was familiar with the interim premises offered by the Government of the Netherlands, and they were of high quality. The premises would serve the Court well in its start-up phase. The Tribunal had built up an excellent library which he placed at the disposal of the officials of the ICC in the start-up period.

For the presidency and the Prosecutor of the future Court to be able to work, he said, a minimum degree of infrastructure needed to be available immediately after they had been elected. Some common services should, therefore, be made available to both the Office of the Prosecutor and the judiciary, which would enable them to fulfil their responsibilities in accordance with articles 42, 38 and 43, respectively, of the Statute. He also said that it would be valuable to refine the level of understanding regarding the details of the common services, and the Tribunal was ready to share its experiences.

He said cost effectiveness demanded that the right decisions were made in the first year. An able individual should also be found to head the common services unit. He suggested that a limited start-up budget could be set aside at the first session of the Assembly of States Parties to enable the head to start work. Subsequently, and after the election of the Judges, the Prosecutor and the Registrar, the common services infrastructure could be used to allow the senior management team to set up the final structure within their respective fields of responsibility, using the common services as a common tool.

He again stressed that both the Yugoslavia and the Rwanda Tribunals remained at the disposal of the Preparatory Commission to share their practical experience.


Working Group Reports

CRISTIAN MAQUIEIRA (Chile), Coordinator for the Relationship Agreement between the Court and the United Nations, said that the working group was almost finished with its work. Only one point remained to be clarified. The group had diligently gone through the Agreement’s various provisions, including the question as to whom it referred. The original text referred to organs other than the United Nations. However, the working group had deemed it more appropriate for the Agreement to have as narrow a focus as possible. Further informal consultations would be held tomorrow and Thursday. He was almost certain that on Friday a fully negotiated document could be presented to the Commission.

ROLF FIFE (Norway), speaking on behalf of the Coordinator of the Working Group on Financial Rules and Regulations (Georg Witschel), said the Group adopted the draft text on the topic last Friday, as well as two draft resolutions concerning the Committee on Budget and Finance and relevant criteria for voluntary contributions. The Working Group also discussed proposals on the establishment of a victims fund.

The Working Group recommended that the Assembly of States Parties should consider the draft texts of the Financial Rules. He said the Working Group also held extensive discussions on the possibility of creating a contingency mechanism to enable the Court to cope with unforeseeable expenditures. While it was not able to reach agreement on the basis of the proposal, he said the matter was considered worthy of further discussion at an appropriate time. Consequently, it was also recommended that the Assembly of States Parties should consider the question of the establishment of that mechanism.

The Working Group also completed the elaboration of criteria for voluntary contributions to the Court. On the basis of the documents adopted by the Group, the Secretariat would prepare a report for action by the Preparatory Commission.

The Working Group’s responsibilities included drafting texts on composition, tasks and format of the Committee on Budget and Finance of the Assembly of States Parties; elaboration of criteria for receiving and utilizing voluntary contributions in accordance with article 116 of the Statute; and establishment of trust funds and other funds.

In the course of its work, the Group held consultations with other coordinators, in particular, the Coordinators on the Working Group on the Rules of Procedure for the Assembly of States Parties and the Working Group for the First Year Budget. Those consultations ensured that technical and other issues relating to the preparation of the first budget and the budget of the Assembly of States Parties were catered for.

PHAKISO MOCHOCHOKO (Lesotho), Coordinator for the Agreement on Privileges and Immunities of the Court, said the group had met once in a formal consultation and three times in informal consultations. The group had considered a complete set of provisions, as well as additional proposals submitted by the Secretariat at the request of various countries. The group had now prepared a draft text of revised articles which had been issued. While there were a few outstanding provisions to be finalized, he expressed confidence that mutually acceptable compromises would be reached during the course of the week. In recognition of the urgency of completing its task, the group was scheduling informal consultations this evening from 6 p.m. to 8.p.m. It also intended to make use of some of the time reserved by the Commission. Hopefully, with the extra meeting times, the group would be able to complete its task by Friday.

SAEID MIRZAEE-YENGEJEH (Iran), Coordinator for the Rules of Procedure of the Assembly of States Parties, said the group had held three informal meetings to continue its discussion of the working paper on the rules. The group had been able to find a solution and agreement on all outstanding articles, with the exception of article 35 on the participation of the United Nations in meetings of the States Parties, and on article 65 on removal of judges from office. He hoped that agreement would be reached on those articles, as well, by Friday.

SYLVIA FERNANDEZ DE GURMENDI (Argentina), Coordinator for the Crime of Aggression, said the group had held three meetings last week, during which it focused on proposals submitted by Bosnia and Herzegovina, New Zealand and Romania. There had been an in-depth debate in a constructive atmosphere. The first document contained a definition of a crime of aggression that had been separated into two paragraphs; the first dealt with the concept of individual criminal liability and the second with the concept of aggression by a State. The second proposal focused on the conditions under which the Court could exercise its jurisdiction with respect to a crime of aggression, as well as the organs which had the authority to determine when a crime of aggression had occurred. The third proposal included a provision for a mechanism in which the Court could refer a case to the International Court of Justice, if the Security Council did not take a decision and if Article 16 of the Court’s Statute was not invoked.

ROLF FIFE (Norway), Chairman of the Working Group for the First Budget, said it had held three meetings. It began discussion of Part 1 of the Secretariat paper on the topic last Wednesday. The deliberations were conducted in a very constructive manner, he said, and added that the task was very challenging. A number of factors still remained to be settled. Many interesting comments and suggestions were made. He had prepared “a non-paper” based on the comments delegations made during the Working Group’s discussions. The document provided a useful input for a further draft by the Secretariat.

He also noted the useful observations on the start-up phase of the Court that had been provided by the two Tribunals. The Coordinator said he had prepared priority guidelines for the Secretariat for its work. He also said the Working Group had reviewed the entire draft paper prepared earlier by the Secretariat. He observed that the initial discussions had provided useful insights into the preparation of the draft first year budget.

The Chairman announced that the Working Group on the Draft Headquarters Agreement would meet later and report to the plenary next Friday.

ZSOLT HETESY (Hungary) introduced a road map for the early establishment of the International Criminal Court (document PCNICC.2001/L.2). He said the document was based on contacts he made with a number of experts and representatives of the host country (Netherlands). The document, which was adopted by the Bureau of the Preparatory Commission last week, contained the Bureau’s plans and was aimed at facilitating decisions concerning the arrangements for the Court’s establishment.

The document dealt with three interrelated areas. Chapter 1 dealt with the general sequencing of activities starting with the deposit of the sixtieth ratification and ended with the election of the Registrar of the Court. It provided a general overview of meetings, and the main tasks to be carried out. As the entry into force of the treaty (Statute) of the Court neared, with the sixtieth ratification, the Bureau would provide a flow chart of events and a more detailed tentative timetable for consideration by the Preparatory Commission, he stated.

Chapter 2 of the document dealt with documents to be prepared and steps to be taken to ensure the timely fulfilment of tasks mentioned in Chapter 1. A sub-chapter contained a list of issues not mentioned in Resolution F of the Final Act of the Rome Conference, which adopted the Statute, but were related to them. Another sub-chapter concerned preparation of internal rules of the Court. The Bureau had identified three clusters of internal rules, namely, human resources and administrative, budgetary and finance, and operational issues.

Chapter 3 of the document dealt with the management of the practical establishment of related issues by providing for an interlocutor mechanism with the host country. It was envisaged that a subcommittee of the Bureau would work with the host country to draw up action plans for the fulfilment of the initial tasks.

The Chairman of the Preparatory Commission underlined that the road map was not intended to be an end in itself. He urged delegations to contact the Coordinator as soon as possible with any further ideas they might have.


General Statements

HANS-CHRISTIAN KINT (Belgium), speaking on behalf of the European Union, thanked the Commission for making available the text of the Joint Declaration of Ministers of the European Union on the Court from last June. The European Union was encouraging the maximum number of States to ratify the Statute and would do everything it could to contribute to the Court’s Statute coming into force as soon as possible. Initiatives aimed at that goal, provided they were consistent with the letter and the spirit of the Statute, should be encouraged.

JOHN TUCKNOTT (United Kingdom) said his Government would deposit its instrument of ratification of the ICC treaty next week.

JONATHON HUSTON (Liechtenstein) said his Government would deposit its instrument of ratification tomorrow morning. The Court had now officially reached the two-thirds mark, he said, expressing confidence that the Court would soon become a reality.

DARYAL BATIBAY (Turkey) said international terrorism had emerged as the most urgent and compelling crime the world was confronted with. Yet, the jurisdiction of the Court, as it now stood, did not include this grave crime. Furthermore, the addition of terrorist crimes to the jurisdiction of the Court would require almost a decade. The world could not, and should not, wait for such a long period.

Among the possibilities of including terrorist crimes sooner under the Court's jurisdiction, he suggested, was the convening of an international conference with the specific mandate of the revision of the Court's jurisdiction so that terrorist crimes were a separate crime category alongside the existing crimes within the Statute.

Another pragmatic approach would be to consider the issue within the framework of the ongoing deliberations of the Commission. Turkey was ready to explore with other countries ways to find a viable solution to that urgent problem without undermining the integrity of the Statute.


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